SZEHL v Minister for Immigration - [2006] FMCA 1752

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEHL v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1752

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – dismissal of show cause application as incompetent – applicant notified of Tribunal decision in 2002 and show cause application not filed until October 2006.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.477
Migration Litigation Reform Act 2005 (Cth)

MZXJP v Minister for Immigration & Anor [2006] FMCA 1010
SZBJP v Minister for Immigration [2006] FMCA 1098
SZBVC v Minister for Immigration & Anor [2006] FMCA 834
SZEKC v Minister for Immigration [2006] FCA 1065

Applicant:

SZEHL

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2940 of 2006

Judgment of:

Driver FM

Hearing date:

27 November 2006

Delivered at:

Sydney

Delivered on:

27 November 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr J Wright
Sparke Helmore

INTERLOCUTORY ORDERS

The application is dismissed as incompetent.
No further application by this applicant to review the decision of the Refugee Review Tribunal made on 25 November 2002 and handed down on 19 December 2002 is to be accepted for filing, except by leave of the Court.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2940 of 2006

SZEHL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a show cause application under the Migration Act 1958 (Cth) (“the Migration Act”) filed on 12 October 2006. The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) said to have been made on 25 November 2002. The applicant asserts notification to him of the decision on 19 December 2002.
The application is supported by two affidavits by the applicant. The first annexes a decision of the Tribunal handed down on 19 December 2002. The second supports a further application by the applicant for an extension of time for the filing of his show cause application.
The Minister’s response to the show cause application and the application for an extension of time was filed on 27 October 2006. The Minister opposes the application on three bases, noting that there had been earlier judicial review proceedings in relation to the Tribunal decision and that the applicant has not filed his show cause application within the time permitted under the Migration Act. Further, the Minister asserts that the application does not establish any jurisdictional error in any event. The Minister relies on the affidavit of Jonathan Wright filed on 27 October 2006, which details the earlier judicial review proceedings in respect of the Tribunal decision. I note that the applicant was unsuccessful in all of those earlier proceedings.
The legal position is set out quite clearly in the Minister’s written outline…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FMCA 1752
Decision Date: 27 November 2006

CaseChat Overview and Summary

The applicant, Szehl, sought judicial review of a decision made by the Refugee Review Tribunal on 25 November 2002, regarding his application for a protection visa. Szehl filed his show cause application on 12 October 2006, which was over four years after the Tribunal's decision was made. The first respondent, the Minister for Immigration & Multicultural Affairs, opposed the application on the grounds that it was filed outside the permissible time limit under the Migration Act 1958 (Cth) and that it did not establish any jurisdictional error. The second respondent, the Refugee Review Tribunal, did not participate in the proceedings.

The court had to decide whether Szehl's show cause application was competent, considering the time limit for filing such applications and whether any jurisdictional error had been established. The court also had to determine if the application for an extension of time to file the show cause application was justified.

The court found that Szehl's show cause application was indeed incompetent because it was filed outside the 84-day period set in s.477(2)(a) of the Migration Act, which is the time limit for filing such applications. The court also noted that Szehl had previously sought judicial review of the same Tribunal decision, and had failed to comply with the orders made by the Federal Court of Australia and the Federal Magistrates Court. The court further found that the applicant's assertion of actual notification of the Tribunal decision on 19 December 2002 was consistent with the timeline of earlier judicial review proceedings. Therefore, the application was clearly filed outside the permissible time limit, and the court had no discretion to extend time. As a result, the court dismissed the application as incompetent and ordered that no further application by Szehl to review the same Tribunal decision would be accepted for filing without leave of the Court. Additionally, the court ordered Szehl to pay the first respondent's costs and disbursements of and incidental to the application, which was fixed in the sum of $1,500.

Orders